Opinion
5 Div. 923.
November 5, 1925. Rehearing Denied. January 21, 1926.
Appeal from Circuit Court, Chilton County; G. F. Smoot, Judge.
Grady Reynolds, J. O. Middleton, and O. L. Reynolds, all of Clanton, for appellant.
It is only where there is no evidence tending to establish plaintiff's case that the court may direct a verdict for defendant. McMillan v. Aiken, 205 Ala. 35, 88 So. 135; Jones v. Bell, 201 Ala. 336, 77 So. 998; Watts v. Metropolitan L. I. Co., 211 Ala. 404, 100 So. 812; B. F. Kay Son v. Ala. C. G. Co., 211 Ala. 454, 100 So. 863; U.S. Cas. Co. v. Perryman, 203 Ala. 212, 82 So. 462.
Stokely, Scrivner, Dominick Smith and J. M. Gillespy, Jr., all of Birmingham, for appellee.
A contract of insurance cannot be given an interpretation at variance with fair sense and meaning of the language in which it is expressed. 14 R. C. L. 925; Ætna Life Ins. Co. v. Lasseter, 153 Ala. 630, 45 So. 167, 15 L.R.A. (N.S.) 252.
The suit is for recovery on two life insurance policies under the total disability clauses therein. The action of the trial court in giving the affirmative charge for the defendant is the only question here presented. These clauses and the salient features of the evidence appear in the report of the case.
The sums claimed were payable on the anniversary of the policies and conditioned upon the continued disability. As a condition to the right of recovery under these clauses the policies provided that the insured should have become "wholly disabled by bodily injury or disease so that he is and will be presumably thereby permanently and continuously prevented from engaging in any occupation for remuneration or profit." During a portion of the period for which suit is brought the evidence shows such disability, but plaintiff's testimony and the admission contained in the letters written to the defendant company disclose that in September, 1922, his condition had so improved that he erected an oil station, and had successfully operated the same since November 1, 1922, and added to the business the sale of automobile tires. In his letters plaintiff stated he would file no claim for disability, as his "condition had improved very much," and that he was able to attend to his business "reasonably well" — adding, "and as long as I can do this I will of course claim no further disability."
We are persuaded the case comes within the influence of Ætna Life Ins. Co. v. Lasseter, 153 Ala. 630, 45 So. 166, 15 L.R.A. (N.S.) 252, wherein it was held from the evidence then offered, that plaintiff was "not totally disabled, so as to prevent him from engaging in any productive occupation," and that the affirmative charge was due to be given the defendant.
Appellant relies upon the authority of U.S. Casualty Co. v. Perryman, 203 Ala. 212, 82 So. 462, to which we may add that of Travelers' Ins. Co. v. Plaster, 210 Ala. 607, 98 So. 909. These cases recognize the well-established rule that insurance policies are not to be too literally construed, but if their provisions are susceptible of two constructions, consistent with the object of the obligation, the one favorable to the assured and the other favorable to the assurer, that will be adopted which is favorable to the assured. Under this rule these authorities hold that, to constitute "total disability" in the connection used in the policies there under consideration, it is not necessary that an injury should render the insured physically unable to transact any kind of business pertaining to his occupation, but it is sufficient if the injury is such that common care and prudence require him to desist from transacting such business in order to effect a cure.
The instant case does not come within the influence of these authorities. There is nothing to indicate that plaintiff has engaged in a business from which common care and prudence would require him to desist in order to effect a cure; but, on the contrary, from his own admission as shown by the letters in evidence, his condition has continued to improve since reengaging in business. From his own testimony it cannot be said he has been permanently and continuously prevented from engaging in any occupation whatsoever for remuneration or profit during the term from February, 1922, to February, 1923. Ordinarily, what constitutes "total disability" is a question of fact (Travelers' Ins. Co. v. Plaster, supra); but where, as here, the evidence is without conflict, and contrary inference cannot reasonably be drawn therefrom, the affirmative charge is properly given. Such we concede is the situation presented in the instant case, and the action of the trial court in giving the affirmative charge for defendant is approved.
Let the judgment be affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.